B-104983, APRIL 4, 1952, 31 COMP. GEN. 496

B-104983: Apr 4, 1952

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

WHO WAS REMOVED FROM THE ACTIVE LIST PURSUANT TO THE PROVISIONS OF SECTION 104 OF THE ACT OF JUNE 29. FOR FAILURE TO ACHIEVE CERTAIN STANDARDS OF PERFORMANCE IS ENTITLED. REQUESTING DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER. IT IS STATED IN YOUR LETTER THAT LIEUTENANT COLONEL BUFFINGTON. WAS PLACED ON THE RETIRED LIST EFFECTIVE MAY 31. THAT SUCH RETIREMENT WAS APPROVED BY THE SECRETARY OF THE ARMY. IF THE APPLICANT IS OTHERWISE QUALIFIED THEREFOR. THE OFFICER IS TO BE HONORABLY DISCHARGED WITH SEVERANCE PAY EQUAL TO ONE MONTH'S BASE AND LONGEVITY PAY. WERE ENACTED IN LIEU OF THE PROVISIONS CONTAINED IN SECTION 24B OF THE NATIONAL DEFENSE ACT. WAS APPOINTED A CAPTAIN.

B-104983, APRIL 4, 1952, 31 COMP. GEN. 496

PAY - RETIRED - ARMY OFFICER WITH LESS THAN 20 YEARS' SERVICE - SERVICE PRIOR TO NOVEMBER 12, 1918 A REGULAR ARMY OFFICER WHO SERVED IN THE MILITARY FORCES PRIOR TO NOVEMBER 12, 1917, AND WHO WAS REMOVED FROM THE ACTIVE LIST PURSUANT TO THE PROVISIONS OF SECTION 104 OF THE ACT OF JUNE 29, 1948, FOR FAILURE TO ACHIEVE CERTAIN STANDARDS OF PERFORMANCE IS ENTITLED, UPON RETIREMENT, TO RETIRED PAY UNDER SECTION 5 OF THE ACT OF JULY 31, 1935, AS AMENDED, EVEN THOUGH THE OFFICER HAD COMPLETED LESS THAN 20 YEARS' SERVICE.

ASSISTANT COMPTROLLER GENERAL YATES TO LT. COL. JAMES H. COMINGS, DEPARTMENT OF THE ARMY, APRIL 4, 1952:

BY FIRST ENDORSEMENT DATED AUGUST 1, 1951, THE ACTING CHIEF OF FINANCE FORWARDED TO THIS OFFICE YOUR LETTER OF JULY 27, 1951, REQUESTING DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER, SUBMITTED THEREWITH, IN FAVOR OF LIEUTENANT COLONEL ROLAND M. BUFFINGTON, RETIRED, IN THE AMOUNT OF $342, REPRESENTING RETIRED PAY FOR THE MONTH OF JUNE 1951.

IT IS STATED IN YOUR LETTER THAT LIEUTENANT COLONEL BUFFINGTON, UPON AN APPLICATION SUBMITTED UNDER THE PROVISIONS OF SECTION 104 OF PUBLIC LAW 810, APPROVED JUNE 29, 1948, 62 STAT. 1081, WAS PLACED ON THE RETIRED LIST EFFECTIVE MAY 31, 1951, PURSUANT TO THE PROVISIONS OF SECTION 5 OF THE ACT OF JULY 31, 1935, AS AMENDED, AND THAT SUCH RETIREMENT WAS APPROVED BY THE SECRETARY OF THE ARMY.

SECTIONS 101 TO 104 OF SAID PUBLIC LAW 810, 62 STAT. 1081, AUTHORIZE THE SECRETARY OF THE ARMY TO REMOVE ANY COMMISSIONED OFFICER FROM THE ACTIVE LIST OF THE REGULAR ARMY FOR "FAILURE TO ACHIEVE SUCH STANDARDS OF PERFORMANCE AS THE COGNIZANT SECRETARY SHALL BY REGULATIONS PRESCRIBE.' SECTION 104 OF THE SAID ACT PROVIDES THAT SHOULD A BOARD OF INQUIRY RECOMMEND THE REMOVAL OF AN OFFICER FROM THE ACTIVE LIST, THE RECORD OF ITS PROCEEDINGS MUST BE FORWARDED TO A BOARD OF REVIEW AND SHOULD THE BOARD OF REVIEW RECOMMEND AGAINST THE RETENTION OF THE OFFICER, SUCH RECOMMENDATION MUST BE SUBMITTED TO THE SECRETARY OF THE ARMY FOR APPROPRIATE ACTION. THE SAID SECTION 104 ALSO PROVIDES THAT AT ANY TIME PRIOR TO REMOVAL FROM THE ACTIVE LIST THE APPLICATION FOR ANY OFFICER FOR HONORABLE DISCHARGE "OR VOLUNTARY RETIREMENT UNDER THIS ACT OR ANY OTHER PROVISION OF LAW MAY, IF THE APPLICANT IS OTHERWISE QUALIFIED THEREFOR, BE GRANTED BY THE COGNIZANT SECRETARY.' SECTION 106, 62 STAT. 1082, OF THE ACT PROVIDES THAT EACH OFFICER REMOVED FROM THE ACTIVE LIST PURSUANT TO TITLE I SHALL, IF ELIGIBLE FOR VOLUNTARY RETIREMENT, BE RETIRED; AND, IF NOT ELIGIBLE FOR VOLUNTARY RETIREMENT, THE OFFICER IS TO BE HONORABLY DISCHARGED WITH SEVERANCE PAY EQUAL TO ONE MONTH'S BASE AND LONGEVITY PAY, AT THE RATE BEING RECEIVED ON THE DATE OF REMOVAL FROM THE ACTIVE LIST, MULTIPLIED BY THE NUMBER OF YEARS OF HIS ACTIVE FEDERAL COMMISSIONED SERVICE, THE TOTAL SEVERANCE PAY IN NO CASE TO EXCEED ONE YEAR'S BASE AND LONGEVITY PAY. THE PROVISIONS OF THE SAID SECTION 106 AND OTHER PROVISIONS OF TITLE I OF PUBLIC LAW 810, WERE ENACTED IN LIEU OF THE PROVISIONS CONTAINED IN SECTION 24B OF THE NATIONAL DEFENSE ACT, AS AMENDED BY PUBLIC LAW 190, APPROVED JULY 29, 1941, 55 STAT. 606, 10 U.S.C. 571, SUCH LATTER PROVISIONS HAVING BEEN REPEALED BY SECTION 109 OF THE SAID PUBLIC LAW 810, 62 STAT. 1084.

IT APPEARS FROM THE OFFICIAL ARMY REGISTER OF JANUARY 1, 1951, THAT THE OFFICER HERE INVOLVED SERVED AS AN ENLISTED MAN FROM AUGUST 1, 1918, TO SEPTEMBER 20, 1920; WAS APPOINTED A CAPTAIN, AUS, AUGUST 24, 1942; WAS PROMOTED TO MAJOR, AUS, OCTOBER 26, 1944; WAS APPOINTED AS MAJOR, FINANCE DEPARTMENT, REGULAR ARMY, JUNE 20, 1947; AND WAS PROMOTED TO LIEUTENANT COLONEL JULY 1, 1948. IT IS STATED IN YOUR LETTER THAT ON THE DATE OF RETIREMENT, JUNE 1, 1951, THE OFFICER HAD COMPLETED ONLY 10 YEARS, 8 MONTHS AND 20 DAYS' ACTIVE SERVICE INCLUDING ENLISTED SERVICE FROM AUGUST 1, 1918, TO SEPTEMBER 20, 1920, AND, PRESUMABLY, IT IS THE ADMINISTRATIVE VIEW, AS EVIDENCED BY AN OPINION OF THE JUDGE ADVOCATE GENERAL OF THE ARMY, DATED DECEMBER 27, 1951, THAT THE OFFICER QUALIFIED FOR VOLUNTARY RETIREMENT UNDER THE PROVISIONS OF SECTION 5 OF THE ACT OF JULY 31, 1935, AS AMENDED BY SECTION 3 OF THE ACT OF JUNE 13, 1940, 54 STAT. 380, AND SECTION 202 OF PUBLIC LAW 810, 62 STAT. 1084 (10 U.S.C. 971 (B) ( WHICH PROVIDES IN PART AS FOLLOWS:

ANY OFFICER ON THE ACTIVE LIST OF THE REGULAR ARMY, THE REGULAR AIR FORCE, OR PHILIPPINE SCOUTS OR ANY OFFICER OF THE RESERVE COMPONENTS OF THE ARMY OF THE UNITED STATES OR OF THE AIR FORCE OF THE UNITED STATES WHO SHALL HAVE COMPLETED NOT LESS THAN TWENTY OR MORE THAN THIRTY YEARS' ACTIVE FEDERAL SERVICE IN THE ARMED FORCES OF THE UNITED STATES, AT LEAST TEN YEARS OF WHICH SHALL HAVE BEEN ACTIVE COMMISSIONED SERVICE, MAY IN THE DISCRETION OF THE SECRETARY OF THE ARMY OR THE SECRETARY OF THE AIR FORCE, AS THE CASE MAY BE, BE RETIRED UPON HIS OWN APPLICATION WITH ANNUAL PAY EQUAL TO 2 1/2 PERCENTUM OF THE ANNUAL ACTIVE DUTY BASE AND LONGEVITY PAY OF THE RANK WITH WHICH RETIRED, MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE CREDITED FOR LONGEVITY PAY PURPOSES AND NOT TO EXCEED A TOTAL OF 75 PERCENTUM OF SUCH ANNUAL ACTIVE DUTY BASE AND LONGEVITY PAY: * * * PROVIDED FURTHER, THAT ANY OFFICER ON THE ACTIVE LIST OF THE REGULAR ARMY OR PHILIPPINE SCOUTS WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, SHALL UPON HIS OWN APPLICATION BE RETIRED WITH ANNUAL PAY EQUAL TO 75 PERCENTUM OF HIS ACTIVE-DUTY ANNUAL PAY AT THE TIME OF HIS RETIREMENT UNLESS ENTITLED TO RETIRED PAY OF A HIGHER GRADE AS HEREINAFTER PROVIDED, EXCEPT THAT OFFICERS WITH LESS THAN TWENTY YEARS' SERVICE AND OFFICERS WHO ARE UNDER INVESTIGATION OR WHO ARE AWAITING TRIAL BY COURTS MARTIAL OR THE RESULT OF SUCH TRIAL, OR WHOSE CASES ARE PENDING BEFORE COURTS OF INQUIRY SHALL BE RETIRED ONLY WHEN THE APPLICATION FOR RETIREMENT IN EACH CASE HAS BEEN APPROVED BY THE SECRETARY OF THE ARMY * * *.

IN DECISION OF JULY 13, 1950, B-82075, 30 COMP. GEN. 15, INVOLVING THE CASE OF AN ARMY OFFICER WHO HAD SERVED IN THE MILITARY SERVICE PRIOR TO NOVEMBER 12, 1918, AND HAD COMPLETED OVER 27 BUT LESS THAN 30 YEARS' SERVICE, IT WAS RECOGNIZED THAT THE PROVISO OF SECTION 5 OF THE 1935 ACT, AS AMENDED, WHICH APPEARS IN THE ABOVE QUOTATION FROM THAT SECTION, IS AN INDEPENDENT RETIREMENT PROVISION, IN THAT IT EXPRESSLY PROVIDES FOR THE RETIREMENT OF ANY OFFICER ON THE ACTIVE LIST OF THE REGULAR ARMY WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES PRIOR TO NOVEMBER 12, 1918, AND, FURTHER, EXPRESSLY FIXES THE RETIRED PAY OF SUCH OFFICERS AT 75 PERCENTUM OF THEIR ACTIVE DUTY PAY AT THE TIME OF THEIR RETIREMENT.

IT IS NOTED THAT THE SAID PROVISO IS SIMILAR IN SOME RESPECTS TO THE PROVISIONS CONTAINED IN THE ACT OF JULY 29, 1941, 55 STAT. 606, WHICH SUSPENDED, DURING THE NATIONAL EMERGENCY ANNOUNCED BY THE PRESIDENT ON MAY 27, 1941, THE PROVISIONS OF SECTION 24 OF THE NATIONAL DEFENSE ACT OF 1916, AS AMENDED, RELATING TO THE REMOVAL OF OFFICERS FROM THE ACTIVE LIST OF THE REGULAR ARMY, AND PROVIDED IN LIEU THEREOF THAT AN OFFICER REMOVED FROM THE ACTIVE LIST WHO HAD COMPLETED 7 OR MORE YEARS OF COMMISSIONED SERVICE AT THE TIME OF REMOVAL SHOULD BE RETIRED WITH RETIRED PAY EQUAL TO 75 PERCENTUM OF HIS ACTIVE-DUTY PAY AT THE TIME OF RETIREMENT, IF HE HAD COMPLETED 30 YEARS' SERVICE OR HAD SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCE PRIOR TO NOVEMBER 12, 1918. AS NOTED ABOVE, THE SAID ACT OF JULY 29, 1941, WAS REPEALED BY SECTION 109 OF THE ACT OF JUNE 29, 1948, HERE INVOLVED.

WHILE THE INDEPENDENT RETIREMENT PROVISION IN SECTION 5 OF THE 1935 ACT, AS AMENDED, FOR OFFICERS WITH SERVICE PRIOR TO NOVEMBER 12, 1918, IS IN THE FORM OF A PROVISO, IT SERVES NONE OF THE USUAL FUNCTIONS OF A PROVISO, THAT IS, IT NEITHER RESTRICTS, LIMITS, NOR QUALIFIES WHAT GOES BEFORE AND DOES NOT DEPEND IN ANY RESPECT ON THE PRECEDING PROVISIONS OF THE SAID SECTION, BUT STANDS WHOLLY COMPLETE AND INDEPENDENT THEREOF. ALTHOUGH SUCH PROVISION IS UNUSUAL IN THAT IT PRESCRIBES NO MINIMUM SERVICE FOR RETIREMENT, AN OFFICER, TO COME UNDER SUCH PROVISO, MUST BE ON THE ACTIVE LIST OF THE REGULAR ARMY AND MUST HAVE HAD SERVICE PRIOR TO THE END OF HOSTILITIES IN WORLD WAR I AND, IN ADDITION, TO MAKE POSSIBLE ABUSES IN THAT RESPECT SUBJECT TO ADMINISTRATIVE CONTROL, A SPECIFIC PROVISION WAS INCLUDED REQUIRING THE SECRETARY OF THE ARMY TO APPROVE THE APPLICATION FOR RETIREMENT IN ANY CASE WHERE THE OFFICER HAD LESS THAN 20 YEARS' SERVICE. SUCH PROVISION REQUIRING APPROVAL BY THE SECRETARY WHERE THE OFFICER HAS LESS THAN 20 YEARS' SERVICE OBVIOUSLY WOULD BE MEANINGLESS AND VOID UNDER THE AMENDED STATUTE IF THE OFFICER MUST FIRST QUALIFY UNDER THE PRECEDING PROVISIONS OF THE SECTION REQUIRING A MINIMUM OF 20 YEARS' SERVICE.

FOR SUCH REASONS, IT APPEARS THAT COLONEL BUFFINGTON WAS ELIGIBLE FOR RETIREMENT UNDER THE SAID PROVISO IN SECTION 5 OF THE ACT OF JULY 31, 1935, AS AMENDED, AND IN VIEW OF THE EXPRESS PROVISION IN SECTION 104 OF THE ACT OF JUNE 29, 1948, SUPRA, THAT THE APPLICATION FOR VOLUNTARY RETIREMENT OF AN OFFICER RECOMMENDED FOR REMOVAL UNDER THAT ACT MAY BE GRANTED BY THE COGNIZANT SECRETARY "IF THE APPLICANT IS OTHERWISE QUALIFIED THEREFOR," IT IS CONCLUDED THAT PAYMENT ON THE ABOVE-DESCRIBED VOUCHER IS AUTHORIZED. THE VOUCHER IS RETURNED HEREWITH.